The Fourth Amendment protects the people against unreasonable searches and seizures. But what is a “search”? One of the lasting contributions that Justice Scalia made to constitutional law was his revival of the trespass doctrine in Fourth Amendment search analysis. In United States v. Jones and Florida v. Jardines, Justice Scalia wrote for Court majorities that a Fourth Amendment search occurs not just when there is an invasion of a person’s reasonable expectation of privacy (as the Court held in Katz v. United States), but also where the government commits a physical trespass upon a constitutionally protected area (a person, house, paper, or effect, as named in the Fourth Amendment’s text). In Jones, this included installation of a GPS tracking device on the undercarriage of a suspect’s vehicle; in Jardines, use of a drug-sniffing dog around the perimeter of a person’s home.
Does a police officer engage in a Fourth Amendment “search” where he enters the shared basement of a multi-unit apartment building without a warrant, and looks inside of a crawl space there to find evidence of a crime? The United States Court of Appeals for the Seventh Circuit provides some answers in United States v. Sweeney.
Two days before Christmas, 2013, a man entered a Milwaukee pub and drew a gun on the pub’s general manager, who held a bank bag full of money that would be used for the pub’s cash register. The man escaped with the bag of money. The manager, however, recognized the man as a former employee, Eugene Sweeney, and identified the gun he used and the specific markings that it contained.
Police went to Sweeney’s apartment building, where he was captured. There were two apartments on each of the three floors of the building. The front and back doors of the building are typically locked. One officer descended a shared back staircase that led to a common basement area. The basement contained a laundry room, hot water tanks, and a crawl space beneath the stairs. The officer looked inside of the crawl space and found a plastic bag containing a handgun, ammunition, and a magazine.
Sweeney was charged with Hobbs Act robbery, brandishing a firearm during a crime of violence, and as a felon in possession of a firearm. He was convicted and sentenced under the Armed Career Criminal Act. In the district court, Sweeney unsuccessfully challenged the officer’s warrantless entry into the basement and the crawl space where the officer found the gun that was later admitted against Sweeney – the pub general manager testified that it looked like the gun that Sweeney used during the robbery.
The Seventh Circuit upheld the seizure of the gun, saying that there was no “search” as that term is used in the Fourth Amendment, and therefore no warrant was required. The court easily found that, even though neither party had argued it, Sweeney had no reasonable expectation of privacy in the shared basement space here. The more complicated question, however, was whether the officer’s actions constituted a physical trespass onto a constitutionally protected area.
The court said it did not – or, it did not as to Sweeney. As to whether this was a trespass, this was a shared space over which Sweeney could not claim exclusive control, nor did he have any right to store items there or to exclude anyone from the space. So even assuming that this was a trespass onto someone’s property, it was not Sweeney’s (as opposed to the building owner or landlord).
The other problem the court identified with Sweeney’s claim was that the officer’s intrusion, even if a common law trespass, did not involve a constitutionally protected area. The best argument that Sweeney could make on this subject would be to say that the basement was within the curtilage of his home (his apartment). Curtilage is the area immediately surrounding the home, which is associated with the privacies and intimacies of the home itself, and therefore is treated as part of the home for Fourth Amendment purposes. But the court rejected that theory as applied here, consistent with other courts that have held that common basements in multi-unit dwellings are not within the curtilage of those units. The court did not rule out the possibility that, on some set of facts, such a basement might be within the protected curtilage. Rather, it simply held that on the facts of this case, the basement and crawl space here could not be considered within the curtilage of Sweeney’s second-floor apartment.
The court therefore affirmed Sweeney’s convictions, though it remanded for resentencing.